Personal foul

(Via Jonathan Chait's "Life in Ohio, a Continuing Series.")

Authors of note from the Paris Review blog

Jesmyn Ward, originally of De Lisle, Mississippi, has a new novel set on our Gulf Coast during Katrina, Salvage the Bones.

And Patricia Highsmith's biographer introduces us to a favorite writer of her subject's, Theodore Roosevelt's granddaughter, the novelist Theodora Keogh.

Keogh’s novels are mostly set in places she’d lived in intensely and knew by heart: the Upper East Side of New York, the Left Bank of Paris, the North Shore of Long Island.

Manhattan is a great beast in her New York books, prowling restively between vaguely tidal waters like a dragon getting ready to doss down for the night. She made her Paris quartier (our Paris quartier, since I live around the corner from where she wrote) come alive in visceral prose as the postwar terrain it was, throbbing with impermissible desires and criminal thoughts and centered on a street shaped, appropriately, like a goblet of wine.

A natural democrat, she enlivened her work with immigrants, foreign accents, and character actors from the underclasses. In two of her books, homosexuals are the major protagonists (The Double Door, The Other Girl). In others, beautiful women have affairs with underage boys or traduce their conventional husbands in states of magically-compelled trance (The Fascinator, The Mistress, My Name Is Rose).

She never stopped exploring the secrets of the flesh. In Meg (1950), the father of a twelve-year-old girl is magnetically drawn to his daughter’s best school friend—and that attraction is returned. A middle-aged music critic in Paris nearly abandons his new marriage for an eleven-year-old child criminal from the streets, and they kiss (Street Music). An entire Egyptian family falls in love with a chic New York model past her prime (The Mistress). Adult twins make love and suppress a murder (Gemini). A teenage heiress, kept apart from life like a princess in a tower, enters a secret door and sleeps with her father’s paid male lover (The Double Door).

Is Youngstown Sheet & Tube even on his final exams?

The Summer 2011 issue of the Mississippi Law Journal has an article by Lawrence Rosenthal, "Those Who Can’t, Teach: What the Legal Career of John Yoo Tells Us About Who Should Be Teaching Law." From his conclusion:

Whatever the value of creating within the academy repositories for theoretical scholarship unconnected to the practice of law, as we have seen, the vast majority of law students devote considerable time and money to law school on the understanding that they will obtain marketable skills. Surely law schools have some obligation to provide faculties capable of imparting those skills—-anything else is a species of consumer fraud. The fact that our leading law schools have on their faculties individuals who claim to be able to teach students to practice law, but in fact cannot provide their own clients with defensible legal advice and may well be incapable of teaching their students how to do so, suggests that something has gone very wrong in the legal academy.

Check it out.

Obviously, the socialist rot began long ago

It was contended, in that case, just as here, that such an undertaking would be a complete departure from the concept of the forefathers and a step toward socialism; that, if this could be done, the State and its subdivisions could take over and operate every business and industry.

A recent judicial opinion on the constitutionality of "Obamacare"? Or the Mississippi Supreme Court's 1961 summary of the losing side's arguments in Albritton v. City of Winona, a 1938 case in which the court upheld the city's acquisition of a "hosiery, knitting and wearing apparel manufacturing plant"?

In unrelated news, the State of Mississippi does not appear to have taken over and operated every business and industry within its bounds, nor does it seem to be particularly close to doing so.

Can't possibly be true

Some Jewish donors are telling fundraisers for Mitt Romney that while they like him, they'd rather open their wallets for the "Jewish candidate," Michele Bachmann, who they don't realize is actually a Lutheran, the New York Post reports.

"Some in Romney's camp have been wondering whether Bachmann and her allies are pushing the 'Jewish' rumor to help their own fund-raising... She has enjoyed strong popularity among Jewish voters and often talks about her stay on a kibbutz during the summer of 1974, when she was a teenager."

Via Political Wire.

This demolishes numerous economic fairy tales about rational actors, not to mention stereotypes about how smart Jews are. Unless of course the Jewish donors are pulling Romney's leg, in accord with that other stereotype about how funny Jews are.

Your lyin' eyes

The New Jersey Supreme Court is revamping the admissibility of eyewitness identifications in criminal trials. The decision is here; remarkably, it's unanimous (130+ pages of unanimity). No time to read all that right now, but here's a quote from the syllabus:

The Court directs that enhanced instructions be given to guide juries about the various factors that may affect the reliability of an identification in a particular case. Those instructions are to be included in the court’s comprehensive jury charge at the close of evidence. In addition, instructions may be given during trial if warranted. Expert testimony may also be introduced at trial, but only if otherwise appropriate. The Court anticipates, however, that with enhanced jury instructions, there will be less need for expert testimony. To help implement this decision, the Court asks the Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft proposed revisions to the current charge on eyewitness identification and submit them to this Court for review before they are implemented.

Will other states follow?

(Via Drum.)

Whiskey sour

1 shot whiskey, 1 shot lemon juice, 1 shot simple syrup, over ice. Simple & effective.

The bookshelf

Toby Wilkinson, The Rise and Fall of Ancient Egypt: It is weirdly difficult to go to the bookstore and find a narrative history of Egypt from Narmer to Cleopatra, and this book fills the gap. Strictly a political-military account, with literature and religion touched upon only in that context. Wilkinson flogs a bit more than necessary the fact that Egypt was not a liberal democracy, but it's worth being reminded how much suffering underlay those monuments and treasures. Also notable is that he does indeed carry the story past the decline of the New Kingdom up to the Romans, as a succession of regional badasses occupies Egypt.

P.A. Brunt, Social Conflicts in the Roman Republic: A short but influential sketch by Brunt, demonstrating that plebeian unrest was more than the backdrop to the politics of the Republic. I would rather have been reading Brunt's Fall of the Roman Republic, but that thing is over $200; Oxford U P seems squarely on the side of the optimates.

... Here's an interesting quote from Brunt's book:

By modern standards the ancient world was always poor and "under-developed." If any progress was to be made, it was inevitable that the majority should hew and carry in order that a very few might have the means and leisure to cultivate the arts and sciences. Even in democratic Athens property was unequally distributed; slave labour supported the wants of poets and philosophers and enabled quite humble citizens to devote some of their energy to war and government. Plato had said that in his day, the fourth century, every city was divided into the city of the rich and the city of the poor, just as Disraeli said that in nineteenth-century England there were "two nations." What distinguished Rome was neither economic inequality nor exploitation but the enormity in the scale of both. Whether or not this be deemed a fit matter for moral condemnation, the facts are of the highest historical importance, for revolution was to spring from the misery and resentment of the masses.

Brunt's obituary in the Telegraph is also worth quoting:

He liked to tell the story of how he had once dozed off in the presence of an undergraduate, and woke to hear himself declaring: "No, that cannot be correct." He quickly asked his student to repeat the last two sentences of his essay, and was relieved to discover a flagrant error

Roland H. Bainton, Erasmus of Christendom: A good pop biography of a man too sensible for his times. May lead me to actually read my copy of The Praise of Folly.

Oh, those repressive banana republics

Eugene Volokh posts on a prosecution in Saudi Arabia, where a critic of a religious figure posted numerous negative remarks on Twitter, blogs, etc. and has now been charged by national law enforcement with inflicting "substantial emotional distress" on the object of his opprobrium.

... Oh, sorry, did I say Saudi Arabia? My bad. It's the United States.

I seem to be in some parallel universe tonight, where the First Amendment doesn't exist, and where Detroit is up 17-3 in the 2d against New England. Mixed feelings about this dimension thus far.

Quotes from the desktop

What a bitch of a thing prose is! It is never finished; there is always something to be done over.

-- Flaubert to Louise Colet, 1852

I was ruined only twice in my life: once when I lost a lawsuit, and once when I won one.

-- Voltaire

The invention of weights and measures makes robbery easier.
Signing contracts, setting seals, makes robbery more sure.
Teaching love and duty provides a fitting language with which to prove that robbery is really for the general good.
A poor man must swing for a belt buckle, but if a rich man steals a whole country, he is acclaimed as statesman of the year.

-- Chuang Tzu

... a man may live greatly in the law as well as elsewhere; there as well as elsewhere his thought may find its unity in an infinite perspective; there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable.

-- Oliver Wendell Holmes, Jr.

But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

-- Robert Jackson, W. Va. Bd. of Educ. v. Barnette (1943)

You say "General's," I say "General"?

So, what is that thing that one alternately praises or disparages, depending on whether it agrees with one's client's position -- an attorney general opinion, or an attorney general's opinion?

Garner's Dictionary of Modern Legal Usage appears silent on the question. 81 MSSC/COA opinions use "general" and 64 use "general's"; some, charmingly, use both: "Swan sought and obtained an Attorney General opinion. The Attorney General's opinion stated ...."

Turning to the ALLSTATES database in Westlaw and confining the search to 1980 and after, I get 1835 hits for the usage with the apostrophe "s" and 2956 for the usage without, not far from the MS-CS proportion.

... And if there's no apostrophe "s," then does "attorney general" take a hyphen? I'm going with "no," but more out of revulsion than logic.

... By analogy, one says "There's a supreme court opinion on point," not "a supreme court's opinion. But "The supreme court's opinion." Hm.

Here is the solution: "An opinion issued by the Attorney General's office (hereinafter 'AG Opinion') stated that ...."

Georgia on my mind (alternative title: The Dullest Blog Post You May Ever Read)

TBA has been wrapped up in the day job lately, filing 3 briefs in 2 weeks. As loyal readers will recall, the vices of Times New Roman have weighed upon us, but we felt stuck with it because of its compactness and accessibility.

Here lately we've been using Georgia, which certain purists say is fine for the computer screen but not on paper. Call us unsophisticated, but we think it looks good either way. 12-pt Georgia uses little more space than 12-pt TNR, and less than the 13-pt TNR we were using in pleadings, while looking every bit as legible as the 13-pt TNR due to its taller x-height. It's noticeably different from TNR, but not so different as to give the impression I'm dialing in from a commune in the 9th Circuit.

Because Georgia was commissioned by Microsoft, it's about as ubiquitous as Arial (i.e., your computer probably has it pre-installed -- if you didn't want to pay $100 for a font). But the Evil Empire did well in this instance by its choice of designer, the talented Matthew Carter.

Try your next brief in Georgia and see how you like it!

...

This sentence is a sample of Georgia per NMC in comments. My HTML code is changing the face but not the size, so for some reason it looks smaller; the effect on the page is that it looks larger than the corresponding size of Times New Roman.

(As you can see, I fixed the size problem.)

These kids today just don't know the classics

If you haven't had the opportunity lately to wax curmudgeonly on the meretricious cultural tastes of the hoi polloi, this NPR readers' poll as to the top 100 SF/fantasy titles will do nicely.

For TBA's part, all we need to do is note the absence of Jack Vance.

... In faintly-related news, Obama buys the # 9 book on the list, no doubt to turn it into legislation once the Supreme Court affirms the dread insurance mandate:

President Obama made his first vacation visit with his daughters to a bookstore on Martha's Vineyard and was seen holding five or six books, including Brave New World and The Bayou Trilogy, according to the AP.

"He went to the cashier after Malia and Sasha had picked out some books of their own, but disagreed with the $32 price he was quoted, which seemed low for the size of his stack. He paid by credit card, telling the cashiers that he uses it only about three times a year."

I hadn't heard of Daniel Woodrell, but that Bayou Trilogy sounds pretty good.

Also, one of your lunch entrees is poisoned -- let's see how smart you really are!

In Texas we teach both creationism and evolution, because I figure you’re smart enough to figure out which one’s right.

-- Gov. Rick Perry, describing his state's cutting-edge educational technique of teaching students both truth and lies in order to discern which ones are intelligent enough to figure which is which.

... Evolution "has some gaps in it," Perry explained. As compared to ... creationism? General relativity? The standard model? The history of the U.S. as presented in Texas schoolrooms?

No help for Help maid

JJ reports that the author of The Help has won a defense verdict before Judge Green in Hinds Circuit Court, obtaining dismissal of the lawsuit by the alleged model for the family maid* in said novel. The intentional torts had a 1-year SOL and the plaintiff waited 2 years after publication to file suit.

... Kingfish posts Cooper's response opposing summary judgment on the SOL issue, in which she argues, literally, that she had a defense to SJ based on her judging the book by its cover. (See p. 5.) As Candace says on Phineas & Ferb, "that's why books have covers -- so you can judge them!" That theory does not seem to have availed in the present case.

(I do however confess to some curiosity how Cooper's claim for negligent infliction of emotional distress got dismissed, as it had a 3-year SOL; will have to watch the video of the hearing when time permits.)

... In other news, John McWhorter critiques the critics who complain that the movie is racist, insufficiently progressive, whatever.


____________________
* N.b. -- I haven't read the book or seen the movie, so I have no idea what I'm talking about.

Damaged caps

In case anyone hasn't gotten the word, here's Kevin Drum on the folly of damage caps, with Texas as his particular example (in honor of Rick Perry Week on the bloggernet). Good at making money for insurance companies; not so good at anything else.

Some things do not change

Do not tell your wife where you hide your money.

--From a tablet in the city of Ugarit, circa 1400 B.C.

... Having remained ignorant of Ugarit and its treasure-trove of texts until yesterday morning, I find the 3QD link another example of how one learns a new word or fact and then it seems to pop up (whereas presumably one had been unconsciously ignoring it previously).

Civil procedure question of the day

In Mississippi state court, what rule *requires* one to file a notice of service of discovery requests/responses? (Ignore any local rule of a particular court district.)

I'm not finding one, actually.

MRCP 5(d) says how you prove service of discovery papers, but doesn't say you have to file any notice.

Terence Evans R.I.P.

Also via How Appealing, Judge Terence Evans of the 7th Circuit died this week of a sudden illness. Besides the just-linked appreciation, Bashman posts a eulogy by Frank Easterbrook.

In Bashman's 2001 estimation, Evans, Posner, and Easterbrook of the 7th Circuit were "the best appellate opinion writers working today."

11th Circuit to 6th Circuit: we're splitting, baby

A 2-1 panel strikes down the PPACA insurance mandate. (Via Bashman of course.)

More when I can actually download the damn thing.

... ACA Litigation Blog posts on the opinion's main holdings, and hosts a PDF that will perhaps be easier to download.

They predict an increased likelihood of cert grant in the 6th Circuit case, but as Orin Kerr noted in comments at the VC (before the site crashed), the feds will presumably seek en-banc review at the 11th, and the SCOTUS may well want to see how that shakes out.

... Jonathan Cohn notes that "Clinton appointee" was already known not to be an accurate guide to Frank Hull's judicial politics. (N.b. that's a female Frank.) Clinton wasn't as lackadaisical about the federal bench as Obama, but he never took it as seriously as Reagan and Daddy Bush did. With the results we see today. (Meanwhile, the dissenter, Stanley Marcus, is was a Reagan appointee to the district-court bench whom Clinton tapped for the 11th Circuit.) (Error corrected.)

Of course, they deflect them all to the COA anyway ...

Following up on its call for briefing on the constitutionality of direct appeals from the state health department, the MSSC today did the same thing in a workers' compensation case (scroll to bottom).

The only thing worse than having to file an extra brief on a constitutional issue in a CON case is having to do it in a workers' comp case -- there just ain't enough money involved to make it feel like much fun.

What other direct appeals did the Legislature provide for last term? Searching the 2011 session for "direct w/2 appeal" I don't find anything else.

Why do we have a "Commission on Judicial Performance"?

Today, the MSSC imposed a 270-day suspension on Alcorn Justice Court judge Jimmy McGee, on the following facts:

During April, 2008 the Respondent learned that a relative of the Respondent had allegedly been the victim of a crime. Respondent actively participated in the investigation of the matter which resulted in the indictment and arrest of a person identified herein as “A.B.”

Subsequent to the indictment and arrest of A.B., the Respondent, in his official capacity as Justice Court Judge, interfered with the orderly prosecution of the case against A.B. Respondent interfered with A.B.’s attempt to post bond, insisting that A.B. only be allowed to post a cash or written bond. Respondent became upset upon learning that A.B.’s family was allowed to post a property bond rather than a cash bond of $50,000 as Respondent proposed to law enforcement. Subsequently, the Respondent disrupted an executive session of the Alcorn County Board of Supervisors by entering the closed meeting uninvited, angrily complaining of the sheriff’s actions relating to the bond and otherwise causing a disturbance and an interruption of the business of the said Board of Supervisors.

Respondent then interfered with A.B.’s attempts to employ legal counsel by discouraging local attorneys from representing A.B. thereby attempting to deny A.B. his constitutional right to counsel and to a fair criminal proceeding. On or about the 13th day of April, 2009, Respondent appeared at the public hearing for acceptance of A.B.’s misdemeanor guilty plea and sentencing in the Circuit Court of Alcorn County, Mississippi. The presiding Circuit Judge allowed the Respondent to address the Court and the following was stated by Respondent on the record and in open court:

I could assure you that if anything like this ever happened to anybody that I know, my advice to them would be do not use the court, handle it themselves.

I would like for everyone in this court to know that had I had this to do over again we would never had went to a grand jury, that we would have taken care of this down at Biggersville, Mississippi, down on the farm like things should have been taken care of.

The Court more than doubled the 120-day suspension recommended by the MCJP (over a Dickinson dissent complaining that the 1890 constitution doesn't allow the MSSC to increase the recommended sanction).

My question is, why is this guy still a judge at all? What do you have to do to get kicked off the bench?

No wonder we have such sorry judges (as discussed at comments to this NMC post), when no one is making any effort to root them out.

... N.b. that I don't fault the MSSC necessarily, as it more than doubled the recommendation and may have some qualms as to whether Justice Dickinson is not correct. My question is, why wasn't removal from the bench recommended in the first place?

Torture always happens to Other people

Military History Quarterly looks at the history of torture, with an eye to its supposed extinction in the 19th century and its inglorious revival in the 20th.

The nature of war has come full circle since the early 17th century, from total war to gentlemanly clashes and, beginning around 1900, back again. Counterinsurgency and civil wars have become the norm, making it far more likely that combatants will be regarded as treasonous criminals rather than defeated soldiers. Both developments have resurrected operational torture, sometimes in forms not seen since ancient times. * * *

For two millennia, torture has generally been condoned only when applied to noncitizens (such as POWs and conquered civilian populations) or classes of people suspected of plotting against the state (including, at one time or another, rebels, insurgents, terrorists, or members of ethnic, religious, or socioeconomic minorities.)

And so it goes.

Caption contest

"You may consummate the sale of your soul by clicking 'yes, I agree.'"

The presence of an absence

The stricken Louvre closed for a week, but when it reopened, on Tuesday August 29, queues formed outside for the first time ever. People were streaming in to see the empty space where Mona Lisa had hung. Unwittingly, Coignard writes, the Louvre was exhibiting the first conceptual installation in the history of art: the absence of a painting.

(Via FT; August 21 will be the centennial.)

Is this really how we need to be saving money?

The House Page Program, a beloved Washington institution and the beginning of many a congressional career, has become the latest — and, to many on Capitol Hill, thus far the most shocking — casualty of the country’s fiscal woes.

House Speaker John Boehner (R-Ohio) and Minority Leader Nancy Pelosi (D-Calif.) announced Monday in a joint statement that they had directed House officials to “take the steps necessary to conclude” the nearly two-century-old program after independent consultants concluded that it was not cost-effective.

(Via.) Maybe there was a bipartisan decision that all those young folks were too great a sexual temptation.

Another opportunity for the SCOTUS to disgrace itself

Former Defense Secretary Donald Rumsfeld may be held personally responsible in a civil lawsuit for the alleged torture of two American citizens held without charge in a US military prison in Iraq in 2006, a federal appeals court ruled on Monday.

The panel voted 2-to-1 to allow a lawsuit filed by the two former detainees, Donald Vance and Nathan Ertel, to move forward toward a trial before a federal judge in Chicago. * * *

“We agree with the district court that a … remedy is available for the alleged torture of civilian US citizens by US military personnel in a war zone,” Judge David Hamilton wrote for the two-judge majority.

He said the government’s argument, if accepted, would “deprive civilian US citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone.”

“United States law provides a civil damages remedy for aliens who are tortured by their own governments,” Judge Hamilton wrote. “It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.”

In a dissent, Judge Daniel Manion said his two colleagues were for the first time extending constitutional protections to an active war zone. Such action should be left to Congress, not the courts, he said.

First of course the op has to survive en banc review. (Via.) Then five justices can rule that American civilians can indeed be tortured with impunity by their own government without judicial recourse.

(The "active war zone" argument is a red herring. Shooting a guy in a firefight in Fallujah who turns out to be a U.S. citizen? Not actionable. Carting a guy off to prison and torturing him at your leisure? Not an "active war zone" in the practical sense that would support judicial abstention.)

A.J. Liebling on vodka

The standard of perfection for vodka (no color, no taste, no smell) was expounded to me long ago by the then Estonian consul-general in New York, and it accounts perfectly for the drink’s rising popularity with those who like their alcohol in conjunction with the reassuring tastes of infancy--tomato juice, orange juice, chicken broth. It is the ideal intoxicant for the drinker who wants no reminder of how hurt Mother would be if she knew what he was doing.

From this article on the rise of vodka, with some other choice anti-vodka quotes as well (and a generous digression on the marketing of Absolut).

Where's McNamara with his slide rule when we need him?

Marcy Wheeler points us to what appears to be a Taliban attack on a NATO helicopter in Afghanistan that killed almost 40 people, including 30+ Americans. Reports are that over 20 of the Americans were members of Seal Team 6, tho not necessarily the same guys who took out Osama.

As Marcy asks, given the consistent claim that al-Qaeda has been reduced to a ghost of its former self, "Who Will Be the Last 31 Americans to Die in Effort to Kill the Last 31 Al Qaeda Members in Afghanistan?"

Special Needs Camp at the MS Craft Center

Charming the teacher into painting the rest of the pot for him, no doubt.

First impressions are best

Simon Blackburn reviewed Derek Parfit's new book on ethics for the FT. But they rejected it, so he posted his review online. Now a revised version has been published in the FT, and you can compare the two if you like. Some losses from the published version:

Thus after four hundred pages, Parfit roundly forbids Humeans even from saying that when we are forming desires or plans, our standpoint would be improved if we knew more of the relevant facts about the environment, such as it’s not being a bull but a cow. Silly old Hume.

In fact, Humeans must say that there are no reasons for anything--nothing matters. They are rank nihilists! Nicely illustrating how to combine poverty of imagination with vulgarity of tone, one of the commentators included here, Allen Wood, describes them as ‘either radically defective specimens of humanity who are incapable of feeling respect for anyone or anything, or else every time they do feel it they commit themselves to contradicting their own metaethical theories’. Golly. * * *

When he turns from this shipwreck to first-order ethics, Parfit’s aim is to find a reconciliation between two philosophies that are often opposed: utilitarianism and Kantianism. This has also been the aim of many other philosophers, notably J. S. Mill, and R. M. Hare. From the Kantian tradition Parfit draws the idea of principles that could be universally willed. From distinguished modern followers of Kant, such as Rawls, and especially Thomas Scanlon, he draws the idea of principles that nobody could reasonably reject. Such abstract formulae need a great deal of filling out, so from the utilitarian tradition he draws the idea of principle whose universal acceptance would make things go best. Putting all these together we get that ‘an act is wrong just when such acts are disallowed by some principle that is optimific, uniquely universally willable, and not reasonably rejectable’. There are scholarly questions, some of which are pursued by the four commentators, of the extent to which this formula is a true offspring of either Kant or utilitarians, such as Mill. But the fidelity to both traditions, or to previous reconciling attempts, is not Parfit’s prime interest. Instead, with relentless, indeed obsessive, concentration he steers his principle through such urgent questions as whether we ought to send a lifeboat that can only make one trip to a rock where it can pick up five people rather than to a rock where there is only one, or whether a fat man might reasonably object to being pushed off a bridge to stop a trolley hurtling towards five others. * * *


Parfit is of a different temperament. ‘It would be a tragedy’ he tells us on page 2, ‘if there is no single true morality’. Well, outside the charmed walls of All Souls College, there actually are tragedies. Often the messy pluralities of conflicting moral demands—one might have said, the conflicting demands on human life itself—are part of the cause. Inside the charmed walls I fear that the tragedy is more like that of Ajax slaying sheep, or perhaps it is the comedy of Don Quixote tilting at windmills.

Probably best not invite the two of them to the same party for a year or two. And even better, don't invite Allen Wood, period -- sounds like a downer.

Phineas & Ferb: Across the 2nd Dimension

Not to be missed, my friends. My family is bemused by my devotion to this show, but it's REALLY REALLY GOOD.

Scientists find canals dark streaks on Mars

Shifting dark streaks on the surface of Mars are signs that water is flowing there today, scientists said Thursday. * * *

High-resolution photographs taken by NASA’s Mars Reconnaissance Orbiter, which arrived at Mars in 2006, show fingerlike streaks up to five yards wide that appear on some steep slopes in the planet’s late spring. These streaks grow and shift through summer, reaching hundreds of yards in length before they fade in winter. One crater had about 1,000 streaks. * * *

Dr. McEwen and his colleagues report their findings in an article published in Friday’s issue of the journal Science. The scientists said the best explanation they could offer for the streaks was that they were caused by a flow of extremely salty water down the slopes. The salts, which have been detected all around Mars, would allow the water to remain liquid at much colder temperatures than pure water.

However, the scientists said, they have yet to fill all the holes in their story. They cannot, for example, explain how the water darkened the soil. They are also at a loss to explain why the streaks vanish each winter.

But, Dr. McEwen said, “We haven’t been able to come up with an alternative that we believe.”

Interesting if true, though not quite up to vindicating Percival Lowell.

MSSC to Legislature: Not so fast, my friends ....

After two hours of technical difficulties, the MSSC's website finally resumed operation, including this in the hand-downs list:

Dialysis Solutions, LLC v. Mississippi State Department of Health; Mary Currier, in Her Official Capacity as the Executive Director of the Department and State Health Officer; Hinds Department of Health Certificate of Need 1st District; Ruling Judge: Mary Currier; Disposition: On the Court's own motion, within thirty days of the entry of this order, the parties shall file the original and nine copies of simultaneous briefs, each not to exceed twenty-five pages, which address whether Section 1 of 2011 Mississippi Laws chapter 540 is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the Department of Health. Pursuant to Mississippi Rule of Appellate Procedure 44, the Attorney General of Mississippi is hereby notified that before the Court in this appeal are the questions of whether Section 1 of 2011 Mississippi Laws chapter 540 is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the Department of Health. The Attorney General may file a brief addressing these questions in the manner and within the time stated above for the parties' briefs. The Clerk of this Court shall provide copies of this order to the parties and the Attorney General of Mississippi. Order entered.

(That "Ruling Judge" part is rather pointed.)

The Legislature had amended MCA 41-7-201 to allow for direct appeal of a Certificate of Need decision by the MSDH to the MSSC, without any trifling in chancery court. (Hence the naming of the state health officer as "ruling judge.")

Now that we have an intermediate appellate court, I've long thought that *all* intermediate appeals in circuit/chancery courts should be abolished. They merely provide an additional level of delay and expense. The MSSC doesn't defer to the intermediate decision, and thus the appeal to it becomes a direct review of the administrative decision. The circuit/chancery decision thus becomes nugatory.

(Of course, one could argue that there are policy reasons for making it difficult to challenge administrative decisions ....)

But the MSSC is obviously not amused by the Legislature's tinkering. Here's Section 146:

The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. The Legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility. The Supreme Court shall consider cases and proceedings for modification of public utility rates in an expeditious manner regardless of their position on the court docket.

The "as properly belongs to a court of appeals" language would seem to restrict jurisdiction to cases appealed from a lower court. And that has been the Court's view, as suggested by these holdings I've pulled from the annotations to Section 146:

Under Const. 1890, § 146, providing that the jurisdiction of the Supreme Court shall be such as properly belongs to a court of appeals, the only jurisdiction which the Legislature can confer upon the Supreme Court is to review and revise the judicial action of an inferior tribunal, and such incidental jurisdiction of a quasi original character as is necessary to preserve its dignity and decorum, and to give full and complete operation to its appellate powers. Robertson v. Southern Bitulithic Co., 92 So. 580 (Miss. 1922).

Under Const. 1890, § 146, declaring that the Supreme Court shall have such jurisdiction as properly belongs to a court of appeals, its revisory jurisdiction includes only judicial decisions rendered by a tribunal clothed with judicial power. Illinois Cent. R. Co. v. Dodd, 61 So. 743 (Miss. 1913).

But has the Court read Section 146 correctly? What does the language after "and" add? The "court of appeals" clause states a category of jurisdiction; the "shall exercise no jurisdiction" clause limits its jurisdiction, but expressly allows for "general law" (statutes) to create jurisdiction. Or so one would think.

On that reading, the following sentence allowing the Legislature to provide "by general law" for direct jurisdiction over utility-rate appeals would be superfluous, and that's a no-no when interpreting statutes or constitutions. But it seems obvious that a constitutional amendment was deemed necessary because of the Court's own rulings. If those rulings were mistaken, then an amendment necessitated by those rulings shouldn't be taken to support said mistake.

TBA's take is that, if we attend simply to what Section 146 says, the Legislature cannot take away from the Court's jurisdiction, but it can add to it. That's not what the Court has held, and maybe if I had time to review the case law my view would change; but in the absence of a clause delimiting the Court's original jurisdiction, I'm not convinced that this is Marbury v. Madison all over again.

Of course, some days I just want to say "the hell with it" and go to Courier

Over at the NYRB blog, Edward Mendelson (him) has a piece up on the ideological deficiencies of the Helvetica font, and plugs two of his favorites, Sabon (serif) and Optima (sans).

As someone who makes his living by "pleading" with people to read what I write, I spend some time pondering fonts. Two problems hinder me. First, I don't want the font to look so different from the ubiquitous Times New Roman that the reader's immediate thought is "what weird font is this in?" Second, although the federal appellate courts have gone over to measuring length by # of characters, the district courts and the Miss. courts still count pages. So even if a wider-spaced font is easier to read, I can't use it if it lengthens my page count too much.

Here of late I've been using CG Times, which is a bit more attractive than TNR while looking similar enough not to raise eyebrows, uses a tad more space but not much, and has the additional appeal of already being on my computer (i.e., I don't have to buy it for $75+).

(The legendary Edward Tufte is a big fan of Gill Sans and Bembo. Gill Sans, it must be said, is very readable, but doesn't pass the "what is THAT?" test.)

Mr. Economy needs to file suit for medical malpractice

Paul Krugman:

It’s kind of annoying when people claim that I said the stimulus would work; how much noisier could I have been in warning both that it was grossly inadequate, and that by claiming that a far-too-small stimulus was just right, Obama would discredit the whole idea?

He goes on to compare his predictions with those made by the WSJ at the time. Click through only if you're in any suspense how that turned out.

But actually the stimulus was worse than Krugman or anyone else knew at the time:

Specifically, when Barack Obama took office in the first quarter of 2009, the BEA was saying that the economy contracted 0.5 percent in the third quarter of 2008 and 3.8 percent in the fourth quarter. In fact, we now know that it plunged 3.7 percent and 8.9 percent. This is a huge error. Imaging making the same error in the opposite direction. That would be the BEA describing a major economic boom as a serious recession. Instead they mistook a cataclysmic collapse for a mere serious recession. And this recession happened before Obama took office, meaning that he was faced with a much larger output gap than he realized. Consequently, he framed a policy response that was inappropriate to the actual severity of the situation.

The "consequently" gives Obama too much credit, as PK insists. Regardless, the upshot was that the patient presented with influenza, the Dems prescribed cold medicine, and it turns out the poor Mr. Economy had pneumonia.

And now, the GOP is treating the patient with leeches -- er, spending cuts.

Mississippi Lawyer Blog

I hadn't realized that Coxwell & Assocs. has a blog, and a very handsome one. Duly blogrolled; check it out!

Persian on Persian, summertime edition

There were times we regretted
The summer palaces on slopes, the terraces,
And the silken girls bringing sherbet.

-- T.S. Eliot, "Journey of the Magi"

Mmmmm yes, sherbet ... vewy good ... purrrrrr ... zzz ...

Dep't of Mama Take This Badge from Me

Due to his failure to switch parties, the inevitable has befallen Malcolm McMillin: he's lost the Hinds County Democratic primary to a black candidate for sheriff.

Unfortunately, the victor is Tyrone Lewis, ex-deputy chief of the Jackson P.D., best known to some of us for lying under oath in Hinds Circuit Court:

Part of the excluded exhibit included findings of fact contained in a sworn affidavit Jones presented to a court to obtain an arrest warrant. The erroneous ruling allowed plaintiff’s expert, Tyrone Lewis, to testify with impunity and without fear of exposure, “[T]here is no documentation, no written statements or anybody to come forward to say that it did not happen [at Rebelwood].” The trial court should have known that Lewis’s statement was untrue. In fact, repeated references and statements to the contrary exist throughout the investigative reports. A cursory examination would reveal this truth. Under either scenario, Lewis’s statement was patently erroneous and violated the purpose and construction of our Rules (“that the truth may be ascertained and proceedings justly determined”). Miss. R. Evid. 102.

Now this moral exemplar will more than likely be the sheriff of Hinds County. Good luck with that, my southern neighbors. I wonder how much more he can charge Ashley Ogden for lying on the stand, once he gets to testify wearing a sheriff's badge?

Maybe Mac would like that JPD job back now.

(Note to Justice Randolph: the M.R.E. says you can cite it as the M.R.E. See M.R.E. 1102.)

... It bears mention that one of the candidates in the Madison Co. sheriff's runoff is no prize either, unless you believe that he (1) had no clue what his officers were doing and (2) had no duty to seek the prosecution of an officer who perjured himself to obtain a false DUI conviction.

... Curt Crowley takes issue with Lewis's having lied; see this JJ thread starting about 12:16 PM (Aug. 3). As of the 3:13 mark, he had failed to convince y.t. -- those interested may click through and weigh the arguments for themselves.

Should've practiced that reach-for-the-sky move

The New Yorker has perhaps the most detailed report yet on the raid that killed Osama bin Laden:

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him--it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye.

The remark by the SO officer might make this a jury issue -- does anyone train these guys in the law of war? -- but if OBL didn't make an overt attempt at surrender, I doubt there's a material violation here.

Poor planning

Filed two Rule 56 motions in one case, one Rule 56 response in another case, and polished up & filed a reply brief for a colleague with an emergency in a third case. What the hell made everybody think, "hey, August 1, THAT looks like a good deadline"?

Thank god for ECF/MEC, I gotta say.

(Tho the fees for MEC are insaaaaaaaaaaane. We have to pay $30 to get a copy of OUR OWN MOTION we just filed -- no free look like the feds give? Plus $10 per MEC member per year? I guess this is how the judiciary is redressing its budget.)